Mcle Self-study Article Rule 8.4.1: Prohibited Discrimination, Harassment and Retaliation-purpose, Scope and Application
| Publication year | 2022 |
| Author | Ashod Mooradian* |
Ashod Mooradian*
California Rules of Professional Conduct, rule 8.4.1 that conduct by attorneys that violates the civil rights of our clients and other persons is unethical and can result in discipline. Specifically, rule 8.4.1 prohibits attorneys from engaging in discrimination, harassment, or retaliation in "in representing a client." The rule also prohibits a lawyer engaging in discrimination, harassment or retaliation "in terminating or refusing to accept the representation of any client," and in law firm operations.
This article first discusses the important policy rationales underlying rule 8.4.1, followed by a review of the history of the controversy surrounding its adoption, including a comparison of its provisions to those found in former rule 2-400. An examination of the rule's scope follows to understand the duties it imposes on all California attorneys. Next, the article considers California and federal anti-discrimination statutes that are applicable to attorneys and law firm operations. The article concludes with a consideration of several hypothetical fact scenarios to better expound on and clarify the scope of rule 8.4.1.
Comment [1] of rule 8.4.1 sets for the policy rationale underlying the rule, stating in pertinent part, "[c]onduct that violates this rule undermines confidence in the legal profession and our legal system and is contrary to the fundamental principle that all people are created equal." This sweeping statement is proper and well taken.
Lawyers are not just the representatives of their clients, but they are also officers of the legal system1 and prominent representatives of the California system of justice, who swear as a condition of their admission, to "support the Constitution and laws of the United States and of this state."2 In other words, California lawyers not only owe duties to their clients, but also to the courts and to the legal profession. Thus, California lawyers play a highly visible and broad public role in the administration of justice.
Consequently, lawyer conduct that is discriminatory, harassing, or retaliatory against clients and other persons in connection with the practice of law, can arouse public skepticism and a pernicious distrust of those charged with ensuring justice and fairness for all. In sum, the policy rationales underlying rule 8.4.1 recognize that attorneys must be seen as staunch and vigilant guardians of the rule of law and the system of justice
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because our constitutional democracy depends on popular participation and support to maintain not only its authority, but its continued existence. If we depart from such an understanding of the role attorneys to the rule of law and the fair administration of justice, we do so at the peril of our constitutional democracy.
After a vigorous public debate between proponents and opponents of the proposed rule and a tie-breaking vote by the Chair of the Board of Trustees of the State Bar of California, rule 8.4.1 was submitted to the Supreme Court of California for approval.3 Of particular concern to opponents of the rule's adoption was revised language that conferred upon the State Bar's prosecution arm, the Office of Chief Trial Counsel (OCTC), original jurisdiction to investigate and prosecute claims of harassment, discrimination, and retaliation, and to make recommendations regarding discipline that ultimately become supreme court disciplinary orders that are final adjudications for collateral estoppel and res judicata purposes.4
Rule 8.4.1 prohibits unlawful discrimination, harassment, and retaliation in connection with the representation of a client, the termination or refusal to accept the representation of any client, and law firm operations. Rule 8.4.1 reflects a fundamental change from former rule 2-4005 in that it: 1) eliminates the former requirement in rule 2-400 for a final civil determination of unlawful conduct before a disciplinary investigation could commence or discipline be imposed;6 2) expanded the scope of former rule 2-400, which had only applied to "the management or operation of a law practice,"7 and 3) further expanded the scope of former rule 2-400 to prohibit unlawful retaliation.
A majority of the members of the Commission for the Revision of the Rules of Professional Conduct8 believed that the prior adjudication requirement of former rule 2-400 rendered it difficult to enforce as corroborated by the fact that no discipline had ever being imposed under that rule.9 Further, the majority of the Commission questioned the wisdom and need for the prior adjudication requirement in former rule 2-400 because no other rule contained a similar limitation on the original jurisdiction of the State Bar Court.10
A minority of the Commission, however, raised concerns about the elimination of the prior adjudication requirement, the primary of which included:
- State Bar complaints may be filed by aggrieved clients and employees without the usual concern for the negative consequences typically associated with filing complaints in civil actions, such as being subject to claims for malicious prosecution or attorney fees;11
- The State Bar Court is not properly experienced or staffed to become the forum of first resort for a victim of discriminatory, harassing, or retaliatory conduct committed by a lawyer;12
- The disciplinary process before the State Bar Court does not provide for the same due process protections to lawyers as would a tribunal of competent jurisdiction. For example, parties to State Bar Court cases have significantly limited discovery rights and the use and introduction of evidence in State Bar Court cases need not conform to the requirements of the Evidence Code.13
In addition, there was substantial public comment submitted that questioned the wisdom of conferring jurisdiction on OCTC to investigate and prosecute claims over which the Department of Fair Employment and Housing (DFEH) has jurisdiction.14 Specifically, DFEH claims are subject to a robust statutory scheme and body of case law governing administrative and civil actions that OCTC does not have sufficient expertise or experience in handling, which raises significant due process concerns for respondents in the State Bar disciplinary system.15
In response to the concerns raised in public comments regarding the elimination of the prior adjudication requirement, the Commission modified rule 8.4.1 to impose a self-reporting obligation on a lawyer who received a notice of disciplinary charges for violating the rule.16 This modification requires the lawyer to provide a copy of a notice of disciplinary charges to the DFEH, the U.S. Department of Justice, Coordination and Review Section, or to the U.S. Equal Employment Opportunity Commission, as applicable.17 Further, the modification also added a comment that clarified that the State Bar Court's discretion to abate a disciplinary investigation or proceeding would not be affected in the event that a parallel administrative or judicial proceedings arises from the same lawyer misconduct allegations, thus giving a tribunal of competent jurisdiction an opportunity to adjudicate the matter before the State Bar Court takes action.18
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The Board of Trustees took up the approval of rule 8.4.1 at its March 9, 2017 meeting.19 At this meeting, the Board members were split voting six yes and six no to recommend rule 8.4.1 as proposed by the Commission with the Board President breaking the tie by voting yes. Subsequently, the California Supreme Court approved rule 8.4.1 (after a few minor formatting changes)20 to be effective November 1, 2018.21
Rule 8.4.1 is divided into six paragraphs, two of which state what is prohibited under the rule, one that contains definitions of four key terms used in the rule, two that spell out reporting requirements when a lawyer is investigated or charged under the rule, and one that provides three exceptions to the application of the rule.
Paragraph (a) focuses on prohibited conduct involving clients and prospective clients. Specifically, paragraphs (a) (1)-(2) provide that a lawyer is prohibited from unlawfully harassing or unlawfully discriminating against persons based on any "protected characteristic" or from unlawfully retaliating against "persons"22 in representing a client, or in terminating or refusing to accept representation of a client.
Paragraph (a) introduces several terms that are defined in paragraph (c). First, the term "protected characteristic" is expressly defined in paragraph (c)(1) as meaning "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived."23 Second, paragraph (c)(3) provides that the terms "unlawfully" and "unlawful" "shall be determined by reference to applicable state and federal statutes and decisions making unlawful discrimination or harassment in employment and in offering goods and services to the public."24 Third, paragraph (c)(4) defines the term "retaliate" to mean "to take adverse action against a person* because that person* has (i) opposed, or (ii) pursued, participated in, or assisted any action alleging, any conduct prohibited by paragraphs (a)(1) or (b)(1) of this rule."25
Paragraph (b) of rule 8.4.1 focuses on two categories of prohibited conduct based on a "protected characteristic" that might occur "in a law firm's operations." Paragraph (b)(1) prohibits discriminating or harassing conduct based on any...
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